Opinion
May 31, 1988
Appeal from the Supreme Court, Dutchess County (Beisner, J.).
Ordered that the appeal from the order dated July 28, 1987, is dismissed, as that order was superseded by the order dated November 17, 1987, made upon reargument; and it is further,
Ordered that the order dated November 17, 1987 is reversed insofar as reviewed, the defendant's motion is denied, the plaintiff's cross motion is granted and the order dated July 28, 1987, is amended accordingly; and it is further,
Ordered that the disclosure in question shall proceed at a time and place to be specified in a notice of not less than 10 days to be given by the plaintiff; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
In this action the defendant moved for a protective order to vacate the plaintiff's notice to examine his psychiatrist and his medical records. The plaintiff cross-moved for an order to compel disclosure and to direct the defendant to be examined by a psychiatrist designated by the plaintiff.
By claiming that he was unable to work due to depression the defendant put his mental condition in controversy. Consequently, his mental condition is subject to pretrial discovery (see, CPLR 3101, 3120, 2121; Wegman v Wegman, 37 N.Y.2d 940). Thompson, J.P., Bracken, Brown, Weinstein and Spatt, JJ., concur.